Allgood v. Bank of Piedmont

130 Ala. 237 | Ala. | 1900

HARALSON, J.

It is well settled that a bill of review can be maintained only by parties having an interest affected by the decree, and they must be injured by the errors complained of, whatever may have been their right to insist on such errors at the original hearing.—McCall v. McCurdy, 69 Ala. 65; George v. George, 67 Ala. 192; 3 Am. & Eng. Dec. in Eq., 34, n. 5.

“The equity of a bill of review, for newly discovered testimony, is the fact that it is newly discovered, and that, with, the other testimony, it entitles the complainant. to a decree different — 'beneficially different — -from that rendered in the case.”—Banks v. Long, 79 Ala. 319.

Tlie only error here complained oí, is the failure in the original bill to make the Iron Belt Mercantile Company a party, or that the 'suit was not prosecuted in the name of that company.

On the allegations and proof in the original bill, it is not denied, nor can it be, that the complainant therein, was entitled to the decree rendered.—Allgood v. Bank of Piedmont, 115 Ala. 418. If that suit had been instituted by the Mercantile Company on the notes, alleged to have been its property, instead of in the name of the original complainant, the result must have been the same, sio far as complainant in this bill is concerned. It is not denied he owed the notes, the foundation of the original suit, nor is it pretended he had any defense to them, as against the Mercantile Company, other or different from that set up against the original complainant, — The Bank of. Piedmont. Moreover, it does not appear, that the Mercantile Company lias taken any steps to collect said notesi from complainant, or has ever made any complaint at the rendition of said decrees. It may be, that the bank instituted the suit in its own name, at the instance of the Mercantile Co. in order to collect the notes it had transferred as collateral security for its own debt to 'said company. This it could properly have done, by a. re-transfer of the notes to it by the Mercantile Company; and it does appear from this bill, that the bank liad possession of the notes and introduced them on the trial of its cause against defendant. When paper of this character, though indorsed and transferred, gets back into the hands of the transferor, the law converts his possession into a prima fade legal title upon which suit may be prosecuted, regardless of the condition of the paper as to its indorsements.—Berney v. Steiner, 108 Ala. 111. This, however, is a question concerning merely the bank 'and the Mercantile Company, and so far as has been made to appear, it nowise affects this complainant. If the complainant is not entitled to prevail in the end, whether against the bank or the Mercantile Company, there can exist no reason for entertaining his bill for a review and reversal of the original' decrees.

The prayer of this bill is, that “Orator [be] placed in the same situation as he would be, had said bill not ■ been filed against him.” This looks to the reversal of the former decree, and the dismissal of the original bill. If this were done, it would enable the complainant, in case a bill were filed against him by the Mercantile Company, to plead the statute of limitations - of six years against any personal judgment against him in such suit, and escape, simply, with the loss of the lots subjected to the vendor’s lien. 'The suggestion obtrudes itself, that this may be the real benefit- the complainant seeks in filing this bill. If so, it is one a court of equity will not aid him in accomplishing. This would be no injury to him such as would authorize him. to maintain a bill of review He owes the debt to one or the other of these parties, and in good conscience he ought to pay it.

The proper prayer in a case of this kind, is the reversal of the decree, and to retry the cause on the original record, upon the original and new proof.—McCall v. McCurdy, 69 Ala. 69. If this were done, it may be, if the original bill was improperly filed in the name of The Bank of Piedmont, alone, that the Mercantile Company on review, might be added as a co-complainant, with no such effect, and with no such consequences as if the suit were dismissed as prayed.—Plowman, v. Riddle, 14 Ala. 168; Gunter v. Williams 40 Ala. 561, 572.

We fail to see that- any substantial injury was done complainant in the original suit, entitling him to maintain this bill. The, couxd below so held, and we approve the decree.

Affirmed.